STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

There exists more than one way to obtain an expungement of a Kentucky criminal record involving more than one misdemeanor.

In Kentucky, KRS 431.078 generally governs when a person may expunge a misdemeanor conviction, a dismissal, or amended charges. However, this statute limits expungments to only ONE criminal offense within a 5 year period. Upon learning this fact most people with more than one criminal record over several years simply give up.

Individuals with criminal records experience difficulty obtaining gainful employment, entering into and staying in the military, or obtaining credit. Many of these people are basically good but may have made an error in judgement, or in some cases, chose to plead guilty to a crime they did not commit because they did not have the money to retain an experienced criminal defense attorney and did not want to remain in jail waiting for trial ( I note that with the help of an experienced criminal defense attorney, many of these people might have qualified for a pre-trial diversion program which would have resulted in an automatic expungement of their criminal charges once they fulfilled the requirments of the program.). Additionally, for some, the court system helped them reform and want to pursue a lawful path in the community.

Some of Kentucky's 120 counties recognize the problem and have expungement programs in place which may not be advertised nor well known to the public nor known by all criminal defense attorneys. Based on the county, the programs go by various names with the criteria for expungement set either by the county attorney or the individual judges. The programs are very fact dependent and are not available to all criminal offenders. These programs typically require advance payment of program and court costs, the meeting of certain conditions by the applicant, agreement by the prosecutor, petitions made to the courts, and more.

As an example, a college student who had committed three misdemeanors (alcohol intoxication) over a period of time feared that he would not be able to obtain gainful employment after graduation and would not be able to pay his student loans. Working with the county attorney, we entered the student into a program so he would not have a criminal record on graduation.

These special program expungments typically require the services of an experienced criminal defense attorney knowledgable about the various county programs.

KRS 431.078 covers the circumstances for the expungement of a misdemeanor DUI. A DUI - first is a misdemeanor according to KRS 431.060 since it does not involve incarceration in the penitentiary. According to KRS 431.078, the court shall grant the expungement if certain conditions are met, including, but not limited to: 1) no previous or pending felony conviction, 2) no misdemeanor or violation offense in the five years preceding the DUI conviction, and 3) no pending nor conviction of a felony, misdemeanor or violation since the conviction sought to be expunged.

﻿﻿By default, if a person receives a DUI-2, DUI-3, etc, then they will not be eligible for expungement of a DUI-1st as these are enhancable offenses within the five year period as defined by the DUI statutes, KRS 189A.010, et seq.

To begin an expungement, the applicant must obtain an official AOC statewide criminal background check for $20.00. The applicant then files the expungement with the court clerk along with a $100.00 filing fee. If the court grants the expungement, then it will issue an order to seal the records. The clerk and the court may then reply that no record exists upon any inquiry into the matter. Then, pursuant to statute, the person whose record is expunged shall not have to disclose the fact of the record or any matter relating to the expunged charges on an application for employment, credit, or other type of application.

Of note, an expungement applies only to court records and documents. It does not apply to public records. Therefore, any DUI or misdemeanor recorded in the public record (news paper, internet, etc.) prior to the expungement will most likely remain in the public record and can not be expunged from the public record.

Additionally, a few Kentucky counties have special programs where the parties (prosecutor and defense attorney) may petition the court to set aside certain misdemeanor guilty pleas if the convicted person meets certain requirements, including the fulfillment of their sentence and payment of all fines. These programs typically apply when a person's career is at risk. Please contact your criminal defense attorney to learn about the availability of these programs.

I am currently preparing a Continuing Legal Education (CLE) presentation for the Kentucky Bar Association where I teach other attorney's how to prepare a legal defense to the charge of Driving Under the Influence (DUI). This will be the fourth year I have been invited to either write or present the CLE materials. As part of the presentation this year, I decided to add a little humor centered around DUI defenses and Kentucky's love for Horses.

To that end, I am reaching out to the community for help. I plan to preface each DUI topic with a "Top DUI Defense I Learned from My Horse". The general topics include: Standard Field Sobriety Tests; One Leg Stand; Walk and Turn; HGN or Horizontal Gaze Nystagmus Test; Portable Breath Test or PBT; Alphabet Test; Touching The Nose Dexterity Test; Counting Test; Suppression of the Traffic Stop; Implied Consent; Suppression of the Breath Test or Intoxylizer; Suppression of the Blood Test; the Officers Violation of the Statutory Observation Period; When a DUI can be Expunged, and more. I am seeking your suggestions and comments which I can use in the presentation.

For example, a few of the suggested "Top DUI Defenses I Learned From My Horse" currently under consideration include:

1) If I was meant to stand on one leg, then I would have been born with one leg!

2) But officer, I only had a few beers, they make my coat shine.

3) HGN, lets see, does that mean Have Grain Now?

4) Officer, you stopped me for speeding? What part of RACEHORSE do you not understand?

5) You want me to count to thirty while I stand on one leg? You must be horsing around!

6) You want me to say the alphabet from H to R? How can I do that when I can not even pronounce my own name?

7) Walk and Turn, no problem. I can do that, but do I take 9 steps with each leg or only the front two, and if only using the front legs, what do I do with my rear legs?

8) Field Sobriety Test, hmmm, yes, I see the field and it has grass in it. Out of my way, I want to taste the grass to test if I can maintain sobriety.

9) Look at my hoofs, you expect me to take these tests with heels over two inches?

Note, by posting suggestions in the comment section, you are giving me permission to use the best of the suggestions in my presentation to Kentucky's future DUI defense lawyers. Thank you.

There are many stages of a DUI Case. The stages for a drunk driving / DUI case may include the following:

The act of drinking alcohol or taking intoxicants (i.e.: illegal drugs, prescription medications, over the counter medications, and etc. ) and operating a vehicle, either with or without a motor, in violation of the Kentucky DUI laws.

The traffic stop.

Arrest for DUI

Booking and Bail

Retaining a Kentucky DUI Lawyer

Arraignment

Preliminary Hearing (For Felony DUI)

Pre-Trial Conferences and Plea Negotiations

Pretrial Motions & Discovery

Suppression Hearing

Trial

Sentencing

Appeals

Expungement

For additional information on each of the stages of a Kentucky DUI case, please add this blog to your Technorati Favories, . . .

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DUI misdemeanor convictions can be EXPUNGED in Kentucky under certain conditions. A conviction for DUI 1st, 2nd, or 3rd is considered a misdemeanor in Kentucky, while subsequent DUI convictions within a 5 year period are considered felonies. According to Kentucky Revised Statute 431.078, a DUI 1st conviction can be EXPUNGED, as long as the following conditions are met:

The person had no previous felony conviction;

The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;

The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;

No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against the person; and

The offense was an offense against the Commonwealth of Kentucky.

Note that a person receiving a DUI 2nd or subsequent DUI within a five year period may not be able to have the DUI conviction(s) expunged since the statute states that the person may have no other misdemeanor offense within five years prior to the conviction sought to be expunged, and because a DUI 2nd or subsequent DUI requires the element of a prior DUI within the previous 5 year time frame.

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